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Employer Liability for Employee Cell Phone Use




by:
Ashlee Bekish
Dayle Nolan
Larkin Hoffman Daly & Lindgren Ltd. - Minneapolis Office

 
January 15, 2010

Previously published on January 7, 2010

Do you think an employer could be liable if one of its employees, while driving and using a cell phone, causes an accident and injures another party?

Over the last several years, people who have been injured in automobile crashes in which the at-fault driver was using a cell phone have sued the driver’s employer as well as the driver, with some surprising results. Many attorneys for injured parties will look to the employer for the “deep pockets,” or because the employer’s liability insurance usually has a greater dollar value than the employee’s personal automobile coverage. Consider the following:

  • In December 2007, International Paper Company settled a personal injury lawsuit for $5.2 million with an Atlanta woman who lost an arm after being rear-ended by one of the company’s employees. The International Paper employee was driving a company sedan and was on her company-issued cell phone at the time of the accident. Even though the company had a policy in place that only allowed employees to use hands-free phones while driving for company business, the company still decided to settle the suit rather than let the case go to trial.
  • In October 2004, a Virginia law firm settled a $30 million lawsuit for an undisclosed amount after one of its attorneys struck and killed a 15-year-old pedestrian. The attorney was driving her vehicle and talking on her cell phone to a client at the time of the accident.
  • In December 2001, a Florida jury awarded almost $21 million to a passenger in a car that was struck by a salesperson who was using a cell phone while driving. The employer was found liable because the salesperson had been driving for the employer at the time of the accident.
  • In February 1999, a large Pennsylvania investment firm paid a $500,000 settlement to the family of a motorcyclist killed by one of its employees who had been making a work-related call after hours on his own personal cell phone while driving.

As these and similar cases illustrate, employers can be liable for accidents caused by their employees when an employee is driving a company vehicle or using his or her personal vehicle while engaged in business-related activities. Moreover, employers face potential liability for accidents caused by their employees’ use of cell phones while driving if the company provides the phones, or if the use of cell phones is an expected or encouraged part of the job.

Employer liability in these types of cases is based on a legal doctrine called respondeat superior. The doctrine of respondeat superior exists throughout the United States, including Minnesota. Under this doctrine, an employer may be responsible for the harm caused by its employee if that employee was acting within the course and scope of his or her employment at the time the accident occurred. In addition to arguing that an employer is liable for the harm caused by one of its employees, some plaintiffs have argued that the employer is directly liable for its own negligent conduct in failing to provide adequate training or instructions on safe cell phone use, or failing to restrict usage.

Although many of the cases involving employer liability for employee cell phone use while driving happened in states other than Minnesota, Minnesota employers still have cause for concern. After all, the legal doctrine that formed the basis for employer liability in the cases mentioned above--respondeat superior--applies in Minnesota. In addition, Minnesota law requires employers to indemnify employees for civil damages, penalties, or fines asserted against the employee, provided the employee was acting in the scope of employment and was not guilty of intentional misconduct, willful neglect, or bad faith; thus, work-related calls or even personal calls while driving for work that cause injury or damage may fit within this law.

The Minnesota Legislature has also been concerned about the dangers associated with cell phone use while driving. In August 2008, the Minnesota Legislature made it illegal for an individual to send a text message, e-mail, or access the Internet on a wireless communication device while driving. More recently, in April 2009, a bill was proposed to prohibit the use of hand-held wireless devices while driving. Although this bill did not pass out of committee, it demonstrates that the Minnesota Legislature continues to have concerns regarding the dangers posed when people mix cell phones with driving, and this issue is likely to be raised again this session.

Several states have placed an outright ban on the use of cell phones while driving, and an even greater number of states have regulated, in some fashion, cell phone use while driving, for example, allowing only hands-free use. In addition, just over two months ago, President Obama signed an executive order banning federal employees from texting while driving. President Obama’s order covers both federal employees who use government-provided cars or cell phones and federal employees who use their own cell phones and cars to conduct government business.

The growing concern over the use of cell phones while driving is not unfounded. Almost 90 percent of Americans own cell phones. Moreover, one nationwide survey conducted by Harris Interactive in 2009 found that 72 percent of those who drive and own cell phones use them to talk while driving. Although statistics on the number of crashes caused by cell phones is incomplete, one 2003 study conducted by the Harvard Center of Risk Analysis estimated that cell phone use while driving contributed to six percent of crashes, which equated to 636,000 crashes, 330,000 injuries, 12,000 serious injuries, and 2,600 deaths each year. The study also estimated that cell phone-related crashes cost $43 billion annually in property damage, lost wages, medical bills, and loss of life.

With the risk of employer liability associated with employee use of cell phones while driving, society’s growing dependence on cell phones, and the new laws restricting cell phone use while driving, it is time--now more than ever--for employers to consider adopting or adapting policies and practices concerning employee cell phone use. Considerations include adopting cell phone policies prohibiting employees from using cell phones while driving for business purposes and while driving to and from work; or providing instructions and training on safe cell phone use, such as requiring hands-free technology or that an employee find somewhere safe to stop before using a cell phone.

Regardless of the approach taken, employers should make sure that policies are written ones. Employers should also require employees to acknowledge receipt of any such policy in writing, and take steps to monitor compliance with and consistent enforcement of the policy. Even though carefully drafted cell phone policies may not completely shield employers from liability, they may minimize the risks of a costly lawsuit.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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